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Taking the costs of consent seriously: an alternative understanding of efficiency as a legal concern.

1. INTRODUCTION

Most law and economics literature employs efficiency criteria that fit poorly with the structural features of the legal environment. The major limitations trace back to the analytical separation of law from its formative process, which has resulted in an almost exclusive focus on the allocative efficiency of legal entitlements and little or no attention paid to the causal relationship between the efficiency of legal rules and the efficiency of the lawmaking process. This paper contends that a promising strategy for overcoming (or mitigating) these shortcomings is to incorporate a transaction-cost analysis of law-making more fully into the analytical perspective developed by the constitutional political economy.

This paper proposes a methodology focused on the "process-outcome" relationship within the production of law, which I call a "process efficiency analysis." It relies on the analytical tools offered by transaction-cost economics and is grounded in the normative principles of constitutional contractarianism. In addition, I contend that a process efficiency analysis is more consistent with the idea of individual consent as a normative basis of efficiency than the conventional output-oriented efficiency criteria.

In economic terminology, the term "efficiency" refers to the idea of Pareto optimality, or, alternatively, to other concepts (such as Kaldhor-Hicks efficiency and social welfare maximization) commonly used in policy analyses to overcome the restricted practicability of the Pareto efficiency criterion. Legal economists have imported these concepts into the legal realm without adapting them to the specific features of the legal environment (Miceli 1997; Mercuro & Medema 1997; Polinsky 2003; Shavell 2004; Cooter & Ulen 2008;). As a result, law and economics scholarship is predominantly concerned with the content of legal rules rather than the process by which such rules are created. A legal regime is efficient when no additional gains from trade can be obtained through changes in the allocation of rights; that is, it is efficient when the sum of individuals' surpluses is maximized. (1)

The idea underpinning this idea of efficiency is the "commodification" of legal rights. Namely, if legal entitlements are treated as "commodities" that people (absent transaction costs and wealth effects) can freely buy and sell, then those rights will be allocated, through the process of repeated private bargaining, to their highest-valued use. Crucially, the commodification of legal entitlements is associated with the separation of rights from their formative processes: It is the insulation of the output from the law-making process that enables economists to treat legal entitlements as "commodities." (2) Yet the commodification comes at the price of separating substantive legal rules from the law-making process. This is an inaccurate methodology. While there is no denying that economic theory offers invaluable insights into the analysis of law, it must be recognized that the adoption of mainstream neoclassical economic methodology without careful adaptation to the structural peculiarities of the legal environment is not a defensible methodological approach to legal economic analysis.

It is maintained here that legal efficiency is rooted in the process by which members of a community express their consensus and reach an agreement regarding the reallocation of legal rights. Legal efficiency is not an objective property of the outcome independent of the process; rather, it is a function of the ability of the law-making process to embody, in a cost-effective manner, the general consensus of all the people concerned. In this view, legal efficiency becomes a function of the interaction between institutional and environmental variables located at the process level. These variables capture both the institutional features of the law-making process (e.g., the degree of centralization or the ex ante-ex post perspective of law-making) and the characteristics of the regulated environment (e.g., the homogeneity, frequency, and/or complexity of the regulated cases, etc.). once this logic is recognized, the problem of legal efficiency becomes one of identifying the comparative advantages and disadvantages of alternative sources of law in relation to the characteristics of regulated environments. This entails, of course, a more sophisticated evaluation than that involved in the assessment of specific allocative outcomes. Despite its increased complexity, however, the process efficiency analysis described in this paper provides explanatory and normative tools that usefully complement conventional methodology.

The analysis developed in this paper is certainly not sufficiently mature to be regarded as a systematic "theory" of law-making; nonetheless, it is comprehensive enough to propose a preliminary "framework" upon which a more systematic comparative institutional analysis could be developed in the future. (3) To date, no one in the literature--with a few notable exceptions (Komesar 1994; Parisi & Fon, 2009) (4)--has attempted to propose a general economic theory of law-making; it is likely that the failure to provide such a general theory is due to the lack of a commonly agreed upon unified analytical framework. In this respect, the unified framework proposed here lays the groundwork for a systematic theory of law making.

I proceed as follows. Section I addresses the concept of efficiency as a legal concern. It begins by identifying the structural peculiarities of the legal environment that contradict in many important respects some of the assumptions underlying conventional economic models. These considerations introduce my general contention that an "output bias" underlies conventional law and economics methodology. It is argued that conventional output-oriented methodology is susceptible to the following shortcomings: 1) it is affected by logical circularity and/or logical incompleteness, 2) it fails to provide any assurance of increased social welfare, 3) it does not account for the presence of losers, and 4) it does not account for the predictability/adaptivity trade-off associated with legal change. In these respects, the perspective introduced by a constitutional political economy offers advantages. Section II sketches the outline of a comprehensive theoretical framework designed to predict efficiency problems with the law that incorporate transaction-cost economics within a constitutional political economy. Finally, Section III illustrates the proposed process efficiency analysis more concretely using an example from tort law.

2. EFFICIENCY AS A LEGAL CONCERN

This subsection identifies the structural features of the legal environment that are at odds with the output-oriented perspective. To be clear, it does not object to the unrealistic nature of conventional assumptions used in law and economics models. The sacrifice of realism goes hand-in-hand with the modeling of social phenomena (Langlois & Csontos, 1983). However, the appropriateness of these assumptions is challenged on the grounds that they leave too much of the phenomenon under investigation out of the analysis. In particular, the failure to capture the implications of the legal nature of the object of reallocation (i.e., a "legal right", as opposed to a "thing" or a "commodity") leads to incomplete analysis.

2.1. The "Legal" Environment

The Process-Outcome Relationship. Everything that is qualified as "legal" is the result of a process that confers on the thing a legal nature. (5) From an economic standpoint, both the efficiency of the outcome and the structure of the production costs are affected by the characteristics of this law-making process. on the one hand, individuals are willing to give up some degree of outcome efficiency in order to reduce the costs of law-making (Buchanan & Tullock, 1965). On the other hand, in many instances--and for various reasons, some of which will be discussed below--no available law-making institution is able to predictably generate an allocatively efficient outcome. Therefore, if the lawmaking process is not incorporated into the efficiency calculation, the marginal efficiency analysis of the outcome remains incomplete and, perhaps, misguided (Veljanovski 1980; Komesar, 1994; Parisi 2001, 2004; Parisi & Fon 2009.

Recenlty, Dari-Mattiacci and Deffains (2007) have nicely captured the importance of the process-outcome relationship. Their following statement provides a useful point of reference:

"we make a distinction between the efficiency of the products of the lawmaking process and the efficiency of the legal process itself in providing a certain, complete and predictable set of rules at the lowest cost for society [...] We suspect that enhancing the study of the legal process will also advance our understanding of the rules thereby produced" .

Furthermore, conventional law and economics generally underestimates the fact that lawmakers' decisional perspective is that of the "average" case. The allocation of legal entitlements is generally made with respect to "classes" of cases, rather than individual cases. The need to consider classes of situations makes it impossible to identify, let alone negotiate for the consent of, everyone affected by a re-allocation of legal rights. Furthermore, the lawmaker must take 5 5 into account the uncertainty inherent in the determination of the relevant facts. The lawmaker usually observes only a random sample of the set of non-uniform cases for potential regulation, such that the body of information is significantly constrained. Therefore, the "efficient" rule inevitably produces inefficient outcomes in a number of cases.

Finally, the analytical focus on single, specific scenarios, rather than on sets of non-uniform cases, fails to fully acknowledge the "joint-consumption" interaction among beneficiaries. First, individuals can hardly be excluded from enjoying the benefits of a favorable legal rule. This may cause free-rider problems, resulting in an under-production of efficient law. Second, legal rules may create negative externalities by imposing involuntary redistributions at the expense of those who do not consent to the allocative outcome, thereby failing to meet the Pareto efficiency criterion. (Buchanan & Tullock, 1965). To summarize, the law-making costs, the efficiency-on-average perspective, and the public-good aspect of legal rules structurally characterize the production of law.

Dealing with Losers. (6) The output-oriented perspective aims at freeing efficiency analysis from value judgments. Although distributional concerns have not been neglected entirely (Trebilcock 1975; Quinn & Trebilcock 1982; Kaplow 1986; Trebilcock 2014) mainstream law and economics is based firmly on the assumption that allocative efficiency and distributional equity should be achieved at different functional stages. (7) However, changes in the allocation of legal entitlements usually increase the well-being of some, while simultaneously decreasing the well-being of others. That is, the presence of losers is an essential component of legal change. (8) This poses two methodological problems. First, the assessment of distributional issues entails interpersonal comparisons of utility, which requires value judgments of the sort that conventional economics seeks to avoid. Second, the dislocation effects associated with legal change generate "transition" costs that often impair the attainment of outcome efficiency.

The Economic Value of Legal Predictability. The production of legal rules involves a trade-off between legal predictability and legal change. on one hand, people are willing to sacrifice a certain amount of average outcome efficiency to be able to more easily predict the legal consequences of their behaviors. That is, people gain a high expected benefit from the existence of a stable set of legal rules and are often willing to give up optimal allocations in exchange for higher predictability. On the other hand, people demand some degree of adaptation of law to exogenous changes in the social and economic environment. institutional reforms designed to promote efficiency from an output-oriented perspective do not often take this economic trade-off into account. Instead, they either neglect the benefits expected from more predictable (although sub-optimal) legal regimes or overlook the high rate of technological change that characterizes some regulated environments.

The Problem of Logical Circularity. Allocative efficiency depends on the initial distribution of resources, which depends on the initial allocation of property rights. (9) Therefore, efficiency is not a unique outcome--there are as many efficient outcomes as many possible initial distributions of property rights. This suggests that, in the absence of a nonefficiency-based theory of rights that allows for a normative judgement on the initial distribution of rights, there is no "unequivocal" meaning to comparing any two alternative allocations of rights. Namely, the determination of outcome efficiency rests on antecedent normative judgements concerning the initial distribution of resources that is taken into consideration as the basis for the efficiency assessment (Schmid & Shaffer, 1964; Schmid, 1989; Mercuro & Medema, 1997).

Hence, the problem with efficiency as a normative criterion is that there are too many possible efficient allocations of rights, and that efficiency provides no basis for choosing among them. Allocative efficiency can be defined only upon prior specification of the normative criteria that one adopts to select the distribution of rights that constitute the basis of the efficiency assessment. Similarly, the identification of costs requires a preliminary normative assessment of whose interest counts. As Schmid (2004) put it: "Costs is a function of rights. It is rights that determine whose interests are costs to others. It is these rights that make it possible for one person's interests to become a cost to another". This confirms that any efficiency assessment of rights must rely on a prior nonefficiency-based theory of rights. It is the structure of legal entitlements that determines efficiency, not the converse. (10) The legal-economic discourse is positional, rather than merely technical; it rests on antecedent normative premises that are internal to legal-economic discourse.

If the normative assumptions underlying efficiency analyses are not clearly articulated, a serious problem of logical circularity arises that deprives efficiency analysis of any meaningful content (Samuels, 1978; Leff, 1976).

2.2. Defining Efficiency

I assume that the promotion of individuals' welfare is a central concern of law and legal institutions. (11) The foregoing discussion suggests four methodological tasks that a "legal" efficiency criterion should be expected to accomplish. In particular, such a criterion should:

1) assess the desirability of alternative allocations of legal entitlements based on their impacts on the welfare of individuals and relative to the institutional framework (hereinafter, "welfare");

2) deal with distributional concerns by recognizing that the presence of losers is a structural feature of legal change (hereinafter, "dealing with losers");

3) account for the institutional dynamics of legal change and, in particular, for the trade-off between legal predictability and legal adaptivity (hereinafter, "legal change");

4) acknowledge the positional nature of efficiency analyses, thereby avoiding logical circularity (hereinafter, "logical consistency").

As will become clearer shortly, whether or not an efficiency criterion meets the above requirements depends on how the relationships between "outcomes," "processes," and "consensuses" are construed. Consider the following: First, an allocation of resources is a distribution of resources; to reallocate means to redistribute. (12) Therefore, any reallocation involves both efficiency and distributional concerns (i.e., "fairness" in the current terminology). Pursuing efficiency by reallocating rights requires addressing both efficiency and fairness concerns.

Second, while efficiency is a property of an outcome, fairness speaks to a concern for the process that achieves the outcome. Efficiency is based on individual consent to the outcome, and fairness concerns the way in which those affected by an outcome give their consent to this outcome. Therefore, outcomes and processes as efficiency and fairness are inextricably related to one another, since they are both functions of individual consent. conventional methodology claims to insulate outcomes from processes and efficiency from fairness. However, this requires artificially separating the "consensus with the outcome" from the "consensus with the process." This latter step--which, for brevity, I dub "efficiency as outcome consent" or simply "outcome consent"--proves problematic in the context of legal economic analyses.

2.3. Efficiency as Outcome Consent

Conventional efficiency criteria are built on the logical relationship between allocative outcomes and individual consent. (13) On the one hand, a rigorous application of the efficiency test in terms of "actual" consensus undermines the practicability of the efficiency assessment. On the other hand, any attempt to reconcile outcome consent with practicability results in impoverishing consent. The structural features of the legal environment (previously identified) further exacerbate these criticisms. This section briefly assesses alternative constructions of outcome consent in light of the criteria identified in the previous subsection.

2.3.1. The Actual Outcome Consent

Generally, the term "efficiency" refers to the concept of Pareto optimality. The Pareto principle embodies the idea that actual consensus allows social decisionmaking to achieve ethical neutrality. (14) The source of any Pareto improvement is identified through an intrapersonal comparison of utility (Champman, 2005). Namely, the variation of one individual's welfare is assessed against his or her own utility function, rather than against other individuals' welfare. (15) Pareto optimality is achieved when no Pareto-superior moves are available, considering all possible alternative allocations.

Consider two individuals: c (the consumer) andp (the producer), who have utility functions [U.sub.c] and [U.sub.p], which represent respectively the welfare levels of c and p and which are not objectively measurable by an external observer. In addition, [U.sub.c] and [U.sub.p] are functions of a variable [x.sub.n], which represents a particular allocation of legal entitlements. Thus, [U.sub.c] = [U.sub.c]([x.sub.n]) and [U.sub.p] = [U.sub.p]([x.sub.n]). According to Paretian logic, the move from one allocation of rights [x.sub.1] to another allocation [x.sub.2] is a "Pareto improvement" if the utility of one individual, say c, increases subject to the constraint that the utility of the other individual, p, does not diminish. Formally:

[U.sub.c]([x.sub.2]) > [U.sub.c]([x.sub.1]) [conjunction] [U.sub.p]([x.sub.2]) [greater than or equal to] p([x.sub.1]) (1)

Pareto optimality is reached at a point [x.sup.*] where further reallocations that satisfy condition (1) are not possible. At [x.sup.*] the utility of individual c can be increased only by reducing the utility of individual p, and the converse. It is worth emphasizing that according to the prevailing interpretation of Pareto optimality (here criticized), at [x.sup.*] the social welfare is maximized and no Pareto-superior moves can be made. (16)

Let me now examine whether Pareto efficiency meets the criteria for defining a legal efficiency criteria identified above. The utility possibility frontier depicted in Figure 1 represents the set of Pareto-optimal points for all possible choices of x.

Welfare. First, the intrapersonal comparison of utility does not identify the individual who values a right the most in terms of social welfare. Without measuring the relative welfare gains and losses of different individuals, one cannot confidently identify the individual who values the right most highly and whether social welfare has been maximized. Only an interpersonal comparison of utility (and the related abandonment of Pareto non-cardinality) allows for the identification of the individual who values the contested resource most highly in terms of welfare. Namely, an intrapersonal comparison of utility might well identify a Pareto-superior move that allocates the contested resource to an individual who, according to an interpersonal evaluation, values the resource less (Chapman, 2005). Therefore, while we can say that a Pareto improvement increases social welfare (i.e., by increasing at least one person's personal utility), we cannot know with certainty whether it maximizes social welfare (i.e., whether the resource has been assigned to the person the values it most highly) (Chapman, 2005).

The preceding considerations can be illustrated by referring to Figure 1. All movements from a point representing the status quo, s, to any point located in the north-east region are social-welfare enhancing Pareto improvements--e.g., movements from s to a, from s to f and from s to g. However, among them Pareto superiority cannot identify which one corresponds to the highest valued use of x. (17) Furthermore, we cannot even say that every Pareto-optimal allocation is preferable to non-Pareto-optimal ones from the social-welfare standpoint. For example, d is Pareto-optimal but lies outside the north-east Pareto region; therefore, we cannot say that a movement from s to d improves the welfare of individuals.

Dealing with Losers. First, Pareto optimality does not distinguish between whether optimality is reached through a sequence of Pareto-superior moves or through a different path (i.e., Pareto-inferior moves or non-Pareto-comparable moves). (18) For this reason, Pareto optimality remains blind to the presence of losers on the path to Pareto optimality. For example, a move from s to b reaches Pareto optimality through a Pareto superior move (i.e., no-losers; in this example, both p and c win). On the contrary, a reallocation from s to d reaches Pareto optimality through a non-Pareto-superior move (i.e., c wins, p loses). Both sequences lead to Pareto optimality, but while the former does not entail losers, the latter make one person better off and the other person worse off.

Hence, Pareto improvements can usually be realized only if compensation is actually paid. That is, when policy issues involve situations with both winners and losers, a unanimous actual outcome consensus can be reached only through full compensation. However, if the costs associated with the compensation mechanism exceed the benefits gained from the Pareto improvement, then the logic of Paretian superiority leads to incorrect results. (19)

To summarize, Pareto optimality: 1) cannot compare movement within the Pareto frontier; 2) cannot compare movement along the Pareto frontier; 3) does not ensure that every allocation along the frontier is preferable to every other allocation within the frontier. It only ensures that a Pareto-optimal point is preferable to any non-optimal point that is located in the southeast region. In essence, Pareto optimality suffers from incompleteness: It provides no guidance unless there is a unanimous consent among all individuals regarding the preference order with regard to at least one couple of alternative states of affairs.

Legal Change. Due to the focus on the allocation of the outputs of the law-making process, Pareto optimality does not allow for comparisons among alternative law-making processes, nor does it allow for a comparative assessment of how such processes differentially affect outcome efficiency. The predictabilityadaptivity trade-off is foreign to the analytical scope of Pareto efficiency.

Logical Circularity. Consider the previous example. Assume that the two individuals are confronted with a social choice between two legal states defined by alternative rules of product liability: [x.sub.1] is defined by a negligence rule and [x.sub.2] is defined by a regime that imposes strict liability upon firms for injuries related to their sold products. c is better off in [x.sub.2] and worse off in [x.sub.1], while p is better off in [x.sub.1] and worse off in [x.sub.2] . If the status quo Q is xi, then xi will be the Pareto-optimal allocation of rights, as it is not possible to move to [x.sub.2] without making p worse off. Conversely, if the status quo is [x.sub.2], then [x.sub.2] will be Pareto optimal, as it is not possible to move to [x.sub.1] without making c worse off. This shows that, when a legal issue has distributive implications, the status quo is regarded as a Paretooptimal allocation. Namely, Pareto optimality is a function of the initial distribution of rights.

2.3.2 The Hypothetical Compensation Test

Most law and economics scholarship employs the Kaldor-Hicks (hereinafter, "KH") test as the concept of efficiency. (20) KH efficiency embodies the idea that hypothetical compensation is sufficient to achieve a unanimous consensus from members of a society. Compensation is not necessarily paid to the losers; instead, the theoretical possibility of compensation is sufficient for the efficiency claim. At first glance, KH efficiency seems to reconcile the Pareto principle (i.e., the idea of efficiency as outcome consensus) with the presence of losers in the reality of policy-making. (21) However, the shift from actual to "hypotethical" compensation 20 21 involves a shift from intrapersonal to interpersonal comparison of utility that poses more problems than it solves.

Consider the previous example and assume the status quo Q = [x.sub.1]. The KH test asks whether c gains enough, in the move from [x.sub.1] to [x.sub.2], to hypothetically compensate p for her losses and still be better off. Crucially, unlike Pareto effieincy, here the monetization of the relative gains and losses allows for the inter-personal comparison of utilities. (22) That is, individuals' utility functions are measured in money terms. Let [[omega].sub.c] and [[omega].sub.p] represent the wealth levels of c and p measured in monetary terms (i.e., how much individuals would pay to have the welfare deriving from a particular allocation of legal entitlements [x.sub.n]). In addition, let K denote the hypothetical compensation paid by c to p to compensate for her loss of welfare. A change in the allocation of right is regarded as a KH improvement if it satisfies the following condition:

[U.sub.c] ([[omega].sub.c]([X.sub.2]) - K) > [U.sub.c]([[omega].sub.c] (Xi)) [lambda] [U.sub.p] ([[omega].sub.p]([X.sub.2]) + K) [greater than or equal to] [U.sub.p] ([[omega].sub.p]([X.sub.1])) (2)

Welfare. The major criticism of KH efficiency is that hypothetical compensation (in our example, K) ensures neither that the losers' loss of welfare is effectively compensated, nor that the gainers' gain in welfare is effectively larger than the losers' loss. (23) In fact, while actual compensation allows losers to evaluate their losses according to their own welfare functions (thus ensuring that social welfare is not diminished), (24) hypothetical compensation entails that various collective bodies assess relative gains and losses through a hypothetical evaluation based on money sums. With monetized KH test, we lose the assurance that the welfare losses suffered by losers in the reallocation of rights are adequately compensated by the utility they receive from monetary compensation. (25) This leads to the conclusion that KH efficiency does not accurately identify social welfare improvements. (26)

Dealing with Losers. KH efficiency ignores distributional concerns. All that it is concerned with is the aggregate increase in real income for the whole of society. The fact that gains and losses are measured in terms of willingness to pay exacerbates this shortcoming. (27) Since willingness to pay depends on ability to pay, KH favors the allocation of resources to wealthier people, who thereby acquire a greater willingness to pay than the poor. This increased willingness to pay will, again, favor the rich in future allocations of resources, thereby causing even further increases in the willingness to pay, and so on. (28)

Legal Change. KH poses an unresolved institutional choice problem: that is, which institutional process is best able to measure gains and losses in the reallocation of resources and to evaluate the plausibility of compensatory measures? On this view, only a comparative institutional analysis is able to identify the conditions necessary to enhance social welfare. When informational and measurement problems do not allow for a sufficiently confident assessment of the relative magnitudes of gains and losses or the plausibility of hypothetical compensation, KH offers no guidance. in addition, when the costs of institutional compensating mechanisms are likely to be greater than the benefits of reallocating resources, KH might lead to incorrect results.

Logical Consistency. As Ellerman (2009) has recently demonstrated, a Numeraire fallacy undermines the logical consistency of KH efficiency. (29) For our purposes, Ellerman's critique is important for two reasons. First, it emphasizes the methodological difficulty of separating distribution and efficiency and the need for antecedent normative specifications in any efficiency analysis. Second, it shows the tautological character of an efficiency analysis when the normative premises underlying the definition of output are not expressly stated. (30)

2.3.3. The Hypothetical Consent Test

The strategy commonly adopted in law and economics to evaluate the desirability of legal doctrines is based on a particular set of methodological assumptions. First, efficiency is characterized as an objective property of social states. Second, it is assumed that, in the absence of transaction costs, rational actors will agree to the efficient outcome. (31) Third, it is also assumed that the objective function individuals seek to maximize is aggregate wealth. Based on these assumptions, according to Richard posner, analysts should assess outcome efficiency by answering "the hypothetical question whether, if transactions costs were zero, the affected parties would have agreed to the institution" (Posner, 1992). That is, law should mimic the outcome of a hypothetical frictionless market, implicitly assuming that individuals in this idealized contest will consent to the wealth maximizing outcome. (32) From this perspective, the right is allocated to the person who values it the most. (33)

The wealth maximization criterion (34) (hereinafter "WM") asks upon what allocation c and p would agree in the absence of transaction costs. From this perspective, it is assumed that in the (hypothetical) frictionless world individuals would agree on an aggregate-wealth-maximizing rule: i.e., absent transaction costs, c and p individuals would agree on the allocation of legal entitlements that maximize their total wealth.

Let W represent the sum of the utilities of c and p. In keeping with the previous example, the wealth-maximizing allocation of right satisfies the following condition:

[MATHEMATICAL EXPRESSION NOT REPRODUCIBLE IN ASCII] (3)

Welfare. By summarizing individuals' preferences into a process of social wealth maximization, this approach eventually eliminates genuine consensus. Efficiency is the maximization of social utility, independent of individual genuine outcome consent. As Coleman (1987) observes, consensus is dissolved into the objective function of aggregate wealth measured in terms of individuals' willingness to pay. There is nothing in the consensus that is not already incorporated into efficiency, as objectively measured through the metric of market prices. In short, this approach ultimately fails to find a consensual, normative justification of efficiency independent from the utilitarian argument (Coleman, 1987).

Dealing with Losers. Like KH efficiency, WM also fails to recognize the distributional effects of legal change, thereby privileging and reinforcing the existing wealth distribution. (Bebchuck, 1980). First, because prices reflect a given distribution of wealth, measuring preferences by means of market prices (i.e., willingness to pay) involves an assumption that the status quo is exogenous to the wealth-maximizing decision (Bebchuck, 1980). Second, WM is based on an external, tacit determination of relevant interests. it does not provide any selective criteria for determining whose interests should count in the WM calculus. (Samuels & Mercuro, 1984). From this perspective, it would be better understood in the light of an explicit discussion of the normative assumptions about the relevant interests to be counted as the ultimate objects of WM.

Legal Change. The lack of inquiry into the structure of the law-making process prevents WM from examining the relative merits of alternative sources of law (Komesar, 1994). (35) WM proponents indulge in the methodological error of inferring the characteristics of the process from the quality of the outcomes. The observed allocative efficiency of common law rules leads posner to conclude that the judicial process yields efficient results. Both the positive claim (i.e., that common law is an efficiency-seeking system) and the normative claim (i.e., that common law ought to maximize social wealth) seem to lack sound theoretical foundations (Hadfield, 1992; Garoupa & Gomez, 2011). Without a coherent theory of the law-making process to identify the preferences, incentives and constraints of the actors involved, Posner's positive and normative claims bear the features of ideological assertions, rather than those of warranted theoretical propositions (Mercuro & Ryan, 1984).

Logical Consistency. First, the reliance of WM on the price system involves logical circularity. Because wealth maximization leads to different outcomes depending on assumptions about the initial rights distribution, an antecedent specification of rights is necessary to determine those prices on which wealth maximization relies (Samuels, 1981; Bebchuck, 1980). WM cannot be employed to determine the rights on which it ultimately rests (Coleman, 1980). (36) Second, wealth is an "instrumental" value; it serves as a means to promote other values. The instrumental nature of wealth implies the need to further specify the notion of wealth as the object of maximization (Coleman, 1980).

The analysis to this point suggests that determining efficiency criteria by focusing solely on terminal allocative results leads to unsolved contradictions between a consensual justification of efficiency and the need for normative guidance in realworld policy contexts. It also shows that output oriented criteria do not meet the criteria for a legal efficiency criterion. In particular, 1) they fail to provide any assurance of increased social welfare, 2) they do not account for the presence of losers 3) they do not account for the predictability/adaptivity trade off associated with legal change; 4) they are affected by logical circularity and/or logical incompleteness. The next sub-section introduces the idea that one way to mitigate these contradictions is to extend the pareto test to the constitutional choice stage.

2.4. Efficiency as Constitutional Consent

The body of scholarship known as "constitutional political economy," which originated in the work of James Buchanan, provides a useful analytical perspective to investigate the efficiency of the law. Although, Buchanan did not develop a framework for a comparative analysis of alternative law-making mechanisms, the methodology he proposed provides useful insights. His methodological strategy (hereinafter referred to as "unanimous constitutional consent") differs from conventional output-oriented methodologies in three important respects. First, Buchanan proposes a subjective notion of economic efficiency, according to which unanimous agreement is the only test for efficiency. Anything that is non-unanimously agreed to is inefficient (Buchanan, 1977). Unanimity is regarded as a normatively attractable criterion because it secures the protection of individuals' autonomy and constitutes a means to achieve the enhancement of individuals' welfare. (37) Second, the unanimity test is applied at the constitutional choice stage, which logically precedes the decision regarding the terminal allocative results of the exchange. (Buchanan, 1962). In essence, the idea of enhancing individuals' welfare through pareto-superior moves is applied at the choice between alternative institutional frameworks (Buchanan, 1962). Third, outcomes that are efficient under one institutional framework cannot be compared with those that are efficient under alternative institutional frameworks. The focus of the efficiency analysis shifts from choices "within" to choices "between" institutional frameworks. Such choices are based on the methodology of hypothetical contractarianism (Buchanan, 1975). In sum, efficiency is the outcome of free and voluntary interactions within specific institutional frameworks. It is a function of the process of voluntary exchange and is determined relative to a particular framework of exchange.

The focus on the constitutional choice stage enables efficiency analysis to overcome some of the limitations of the output-oriented approach. First, unanimous constitutional consent is not subject to the inability to identify the social-welfare-maximizing allocation of legal entitlements. From a constitutional perspective, the problem of efficiency is not to maximize the objective properties of the outcome, but, rather, to identify the existence of potential gains-fromtrade associated with institutional choice. The efficiency of the outcome is not directly measured; rather, it is inferred through the structure of the process from which it is generated. (Buchanan, 1959, 1984). This is the opposite of conventional output-oriented approach that, as noted above, infers consensus from the efficiency of the outcome. second, the search for unanimous constitutional consent leads legal efficiency analyses to account for (at least to some extent) distributional concerns associated with alternative legal regimes. In fact, the law-making mechanism is the means by which societies deal with the distributional issues associated with making choices among legal regimes. Therefore, the constitutional choice among alternative law-making mechanisms necessarily incorporates distributional concerns. Third, the constitutional choice stage involves a shift of focus from "individuals' incentives as shaped by the law" to "individuals' incentives to produce efficient law." This enables an efficiency analysis to capture the institutional determinants of legal change. An analysis of the incentives faced by those actors involved in law-making facilitates an understanding of how differently alternative law-making mechanisms impact the efficiency of legal change. Finally, it must be recognized that unanimous constitutional consent does not per se solve the problem of logical circularity. Efficiency is determined in relation to the institutional framework, which can be, in itself, the object of choice at a preceding logical level Coleman, 1987). However, the methodology of hypothetical contractarianism has the advantage of making explicit the normative premises of the efficiency analysis.

3. Process Efficiency

Having discussed the internal difficulties with the output-oriented approach, I turn now to envisage a complementary methodology based on a systematic focus on the relationship between the efficiency of the law-making process and the the efficiency of the legal output.

3.1. The Consent

Process efficiency analysis builds on the idea of unanimous constitutional consent. It seeks to capture the relationship between the outcome of the lawmaking process and the law-making process itself by adopting a constitutional analytical perspective. Although it focuses on the institutional mechanisms of law creation (i.e., the sources of law), it does not exclude the outcome by the analysis; rather, it assesses the outcome indirectly in light of the analysis of the incentive structure underlying the law-making process. In addition, consistent with the idea of efficiency as constitutional consent, process efficiency analysis does not seek social welfare maximization; instead, it identifies the existence of potential gainsfrom-trade associated with institutional change.

From a logical standpoint, the focus on the sources of law is consistent with the idea of consensus as an efficiency test. The sources of law are institutional arrangements designed (or emerged) to obviate the fact that unanimity is not achievable in practice at the outcome level. If unanimity could be reached for each final allocative result at no cost, then the spontaneous emergence of law through repeated contractual practice would be the efficient law-making process. Instead, the presence of significant transaction costs associated with creating and enforcing norms explains the emergence in society of institutional "sources of law." Because achieving unanimous outcome consent is costly (due to a variety of factors, some of which I will discuss below), economic actors consent to institutional mechanisms that enable them to save on the costs of unanimity while concurrently legitimizing departures from unanimity. That is, the sources of law are transaction-cost-reducing mechanisms that emerge in response to the cost structure associated with the struggle to achieve the consensus required to legitimize the legal order.

3.2. The Test

Following standard contractarian methodology, I imagine a hypothetical "constitutional convention," in which a group of economic actors who expect to interact repeatedly meet behind a "veil of ignorance" to determine which institutional actor will make the rules to govern their interactions. (38) (Rawls, 1971) This visualization introduces the distinction between the constitutional choice stage--in which members of a community choose the mechanisms for producing legal rules (i.e., law-making institutions)--and the institutional choice stage--in which the lawmaker (under the varying procedural constraints determined at the constitutional level) creates substantive legal rules. Unanimity is required at the constitutional choice stage, which concerns the allocation of law-making powers among alternative law-making institutions (hereinafter, "process-choice"). However, to the extent that unanimous constitutional consent is reached, unanimity is not required at the institutional level, which concerns the content of substantive legal rules.

The set of choices includes four alternative and idealized law-making techniques: 1) private legal orderings, 2) adjudication, 3) politics, and 4) agencies and bureaucracies. (39) A source of law is Pareto optimal when no Pareto-superior changes are possible, considering all available alternative law-making mechanisms. Put another way, the optimal law-making mechanism is the one that cannot be modified without the consent of every member of the constitutional convention.

The shift in focus from the outcome of law to the sources of law changes the nature of the efficiency assessment. Individuals that are symmetrically situated at the constitutional choice stage choose institutions by taking into account the relative costs associated with alternative law-making processes and the characteristics of the expected flow of cases to be regulated. So conceived, the efficiency analysis investigates and assesses the institutional and environmental variables predicted to be most important in affecting the efficiency of legal rules.

3.3. Optimality

The proposed extension of Paretian logic to the allocation of law-making power justifies allocative results that are not efficient, according to the standard, outcome-oriented notion of Pareto optimality. This raises the difficult question of how the Pareto optimality of the process choice is related to the Pareto optimality of substantive legal rules. They relate to each other in various ways, depending on a changing set of institutional and environmental circumstances. However, it is generally predictable that optimal sources of law tend to generate non-optimal substantive legal rules due to the presence of high transaction costs associated with the law-making.

I group these costs into three explanatory categories. Information costs'. Because legal rules are theoretical constructs, the formulation of legal content requires a great deal of knowledge, competence, and experience. The actors involved in the production of law face, therefore, significant information gathering costs. Agency costs: The incentives of the lawmaker often diverge from those of the people subject to the law; this undermines the law-making process's degree of responsiveness to the interests and preferences of the people subject to the law. in addition, the latter face considerable difficulties in monitoring the activities of the former, which creates opportunities for lawmakers to create legal rules that serve their own interests. Adaption costs: The law-making process faces a difficult trade-off between the costs of (long-run) legal certainty and the costs of changing the law in response to changes in the regulated environments.

In sum, the capacity of legal rules to promote efficiency is constrained by the limited information available to the lawmaker, the misalignment of incentives between the law-maker and the people subject to the law, and the trade-off between legal certainty and efficient legal change. The goal of the law-making process is to minimize the impact of law-making transaction costs on the efficiency quality of legal rules, thereby achieving what I call, respectively, "technical efficiency," "agency efficiency," and "adaptive efficiency." In my proposed terminology, these are the three components of process efficiency analysis.

Once the entire set of law-making costs is included in the efficiency calculus, the closest approximation of the pareto frontier is generally achieved at a point that cannot be qualified as Pareto-optimal in the standard sense. Because, as noted above, Pareto efficiency does not discern among alternative sub-optimal outcomes, an alternative efficiency criterion is needed. I contend that extending the basis of the Pareto test to the outcome-process relationship is one possible way to compare movements (within the Pareto frontier) that are non-comparable on the basis of an actual outcome consensus. The intuition is the following. Because the distance of final allocative results from the Pareto frontier is a function of law-making costs, the ability to assess the relative costs of alternative sources of law facilitates a comparison of the sub-optimal allocations attained by law-making processes. That is, sub-optimal points that are non-comparable under "standard" Pareto efficiency become comparable under process efficiency. However, this is more easily said than done. This section proposes one possible way to conduct a process efficiency analysis.

The idea of comparing sub-optimal points through an assessment of the relative magnitudes of the law-making costs associated with alternative sources of law is consistent with the idea of consensus as the basis for the efficiency test. consent relates to the "process-outcome relationship." Individuals choose the best possible process-outcome ratio--that is, the one that most enhances their welfare, under the constraints of others' preferences and the status quo. The attained outcomes are not "optimal" in a standard Paretian sense, but are "optimally" produced. The lawmaking process is optimal (or "efficient") if there is no other alternative institution that does better, across the circumstances in which it actually operates, in produang legal rules such that each member of society is enabled to enhance his or her own welfare.

3.4. The Costs: A Taxonomy

The efficiency assessment proposed here requires the identification of a unified taxonomy of law-making costs, which will enable the measurement of the various components of process efficiency across different law-making institutions. The proposed taxonomy organizes the fundamental stages of analysis in assessing the relative merits of alternative law-making processes on a case-by-case basis. It does so by identifying the mechanisms that generate inefficiencies in the production of law. The efficiency of the output is still relevant, but is interpreted as a function of the law-making costs.

Importantly, the complexity of the interplay between law-making costs and the regulated environments does not allow for an identification of a unique cost-minimizing point. Cost functions depend on a large number of variables, whose saliences vary across institutions and situations.

My proposed taxonomy of law-making costs is organized around the three following principles:

1) Law-making costs are grouped into three categories, consistent with the definition of process efficiency: information costs, agency costs, and adaptation costs.

2) Each category has both a "process" and an "outcome" dimension. That is, while some costs are associated with the process of making the law, others are related to the inefficiency of the resulting outcome. (40)

3) Analysis of the variables affecting the law-making costs is organized along the lines of a supply and demand model. The supply side summarizes the features of the law-making process that are predicted to predominantly affect the structure of the law-making costs (i.e., the institutional variables). The demand side summarizes the features of the situation from which the need for law arises in society (i.e., the environmental variables); it includes both the exogenous conditions of the regulated environments and the preferences, incentives, and constraints of the people subject to the law.

Information Costs. The law-making information costs include 1) information-gathering costs, 2) compliance information costs, and 3) participation information costs. First, the lawmaker bears information costs to develop the content of legal rules and assign legal entitlements. I call these costs "production-information costs." Second, people who are subject to the law bear costs related to becoming informed about the content of legal rules. I call these costs "compliance information costs." Third, the participation of the relevant actors in the law-making process requires the gathering of significant amounts of information. (41) I call these costs associated with participation in the law-making process "participation information costs."

Agency Costs. Agency costs measure the degree of responsiveness of the lawmaking process to the interests of the individuals subject to the law. From this standpoint, the analysis focuses on the principal-agent relationship between the people (i.e., the beneficiaries of legal rules) and the lawmaker, to whom people delegate the law-making power. Generally, differences in incentives between the people subject to the law and the lawmaker, as well as difficulties confronted by the former in observing the behavior of the latter, create room for severe agency problems. It is useful to distinguish among the following categories of agency costs: 1) influence agency costs (or external pressure costs), 2) internal pressure costs, 3) outcome agency costs, and 4) costs of reducing agency costs.

First, "influence agency costs" are generated by incentive misalignment among different groups of principals: that is, rent-seeking competition among various pressure groups that leads to the dissipation of resources that could be more productively employed elsewhere. This resource dissipation is usually referred to in the literature as "rent-seeking costs." Second, "internal pressure costs" are associated with the lawmaker's moral hazards (i.e., the lawmaker's opportunistic behavior, which often occurs to the detriment of the principals' interests). These manifest in various forms. Consider, for example, the rent-extortion costs (McChesney, 1987, 1997) and transaction-augmented costs (Twight, 1994) in the political process, or the costs of bureaucratic drift in administrative processes. (42) Third, "outcome-agency costs" are associated with successful rent-seeking. (43) These are costs imposed on people subject to the law by inefficient legal rules that result from the opportunistic behavior of lawmakers combined with rent-seeking by pressure groups. These costs manifest themselves in various forms, such as through monopolistic rent costs in the political process or through agency slack on the part of bureaucrats in technocratic law-making. Finally, agency costs are also those associated with the functioning of institutional arrangements designed to minimize the agency problem (i.e., the "costs of reducing agency costs"). Consider, for example, the costs associated with institutional arrangements designed to minimize lawmakers' moral hazards in bureaucratic processes (i.e., the costs associated with ex ante and ex post control of bureaucratic action by politicians), or the costs associated with institutional arrangments designed to discourage rent-seeking (e.g., the division of powers, a bicameral legislature, etc.).

Adaptation costs. Adaptation costs include: 1) adaption transaction costs; 2) adjustment costs; 3) resistance costs; 4) maladaptation costs. Adaptation transaction costs are those incurred by individuals seeking to appreciate the efficiency advantages of a superior legal regime and to coordinate a simultaneous, mutually advantageous migration towards the new legal regime. Consider, for example, the costs involved, for members of all groups, in appreciating the advantages of a new social norm or in adopting a new technology. First, adjustment costs are those that individuals bear when transitioning to the new legal regime and changing their behaviors as required by the law. These are conduct costs in nature; that is, they are related to the behavioral changes imposed on individuals by the legal change. Third, resistance costs include the cost increments borne by individuals in order to maintain old behaviors. Legal change is often associated with resistance from those individuals who suffer losses due to the new legal rules (i.e., the losers) (Trebilcock, 2014). Resistance also comes from those individuals who are slow to appreciate the advantages of legal change. (44) In general, an individual chooses to adjust to a new legal regime to the point at which the present value of an increment in the adjustment costs equals the present value of an additional increment in resistance costs. Fourth, adaptive efficiency has an important outcome dimension. That is, the inefficient adaptation of the production of law to exogenous changes in the demand for law generates substantively inefficient norms. (45) I refer to the costs generated by those substantively inefficient legal rules resulting from the inefficient adaptation of law-making to changes in the demand for law as maladaptation costs. Finally, the levels of information and agency costs identified above have obvious dynamic implications: The higher the agency and information costs are, the slower and less effective the legal change will be. Figure 2 summarizes the discussion.
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Title Annotation:p. 375-401
Author:Bertolini, Daniele
Publication:The Journal Jurisprudence
Date:Dec 1, 2015
Words:8252
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